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DIVORCE
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212.267.0200 Generally, there are two types of divorces. There is the uncontested divorce, and the contested divorce.
UNCONTESTED DIVORCE
Where the husband and wife are in agreement regarding divorce issues such as child custody and child support, and the terms on which their property will be divided, they can usually obtain an inexpensive, amicable divorce often referred to as an uncontested divorce. Where there are children present, your spouse should agree on child custody and the exact amount of child support (or have an Order from Family Court). There may be property to be divided by equitable distribution.
CONTESTED DIVORCE
Where the spouses can not agree on key decisions regarding the dissolution of their marriage, such divorces are considered "contested." The usual problems and disagreements come down to child custody, child support, and visitation, division of property, maintenance, and grounds for divorce. While it is usually more desirable to amicably agree upon the key items in any divorce, a party to the divorce may have unreasonable expectations that will confound hopes of any understanding between the parties. Even with contested divorces, the Marzec Law Firm seeks to reduce our clients' costs by charging reasonable rates and working efficiently. However, generally speaking, a complicated contested divorce will be more costly than a simple uncontested divorce. For more information about our fees, click here.
RESIDENCY REQUIREMENTS
Before seeking a divorce, you must meet certain residency requirements. In New York, you may seek a divorce only if you meet one of the residency requirements below:
1. The marriage ceremony was performed in New York and either spouse is a resident of the State at the time when the divorce action is started, and resided in the State for a continuous period of one year immediately before the action began; or
2. The spouses lived as husband and wife in New York and either spouse is a resident of New York State at the time when the divorce action is started, and resided in this State for a continuous period of one year immediately before the action began, or
3. The grounds for divorce occurred in New York State and either spouse is a resident of the State at the time the action is commenced and resided in this State for a continuous period of one year immediately before the action began; or
4. The grounds for divorce occurred in New York State and both spouses are New York residents at the time action is commenced; or
5. If the spouses were married outside of New York and never lived as husband and wife in this State and the grounds for divorce occurred outside of the State, then either spouse must be a present resident of New York and have resided continuously in the State for at least two years prior to bringing an action for divorce in New York.
GROUNDS FOR A DIVORCE
After you determine that you meet the residency requirements and regardless if the divorce is contested or not, a spouse must have a valid ground to obtain a divorce. The following are the New York State grounds for divorce:
1. Abandonment in excess of one year.
2. Constructive abandonment where either spouse has refused to have sexual relations for more than one year.
3. Adultery.
4. Cruel and Inhumane Treatment.
5. Imprisonment.
6. Living separate and apart pursuant to a separation judgment or decree.
7. Living separate and apart pursuant to a separation agreement.
New York State does not grant divorces based on "irreconcilable differences" as some other states do. All acts that give rise to grounds of divorce must have occurred within 5 years of filing for divorce. Abandonment requires that the Defendant abandons Plaintiff for a period of more than one year without any intentions of returning. Constructive abandonment is a legal fiction where courts recognize a refusal to have sex for over one year and continuing to the present without consent, good cause or justification as a basis for divorce. In some instances, a spouse may be locked out of the marital home for over one year prior to the commencement of the action, which too is grounds for an abandonment based divorce.
If your spouse has been incarcerated for a period of over three consecutive years with the imprisonment commencing after you were married, and where the imprisoned spouse is still in prison when the divorce action is commenced, you may commence an action for divorce based on the imprisonment ground.
You may also base your divorce on your spouse's acts of adultery where the spouse engages in sexual or deviant sexual intercourse with another person while married to you. However, because of the standard of proof in adultery cases, this may not be the best ground to maintain a divorce action under.
Often, parties choose to base their divorce on the ground of cruel and inhuman treatment. Despite the way it sounds, it simply means that because of the spouse's treatment, the plaintiff spouse's physical or mental well-being is endangered and it is unsafe or improper for the plaintiff spouse to continue living with the defendant spouse. Often, adultery qualifies as acts of cruelty.
Separation-based divorces are either based on a Judgment of Separation or a Separation Agreement. In a limited number of instances, parties hold a Judgment of Separation from a judge or a referee of the Supreme Court. After a year of living separate and apart pursuant to the Judgment of Separation, divorce may be maintained. Where the spouse has a Separation Agreement signed before a Notary Public and filed with the County Clerk where one of the parties resides, a conversion divorce is available. The spouses must live separate and apart for more than one year according to the terms of the properly executed separation agreement before one can take steps to start a divorce action.
While the materials provided through our website are a good background about the basics of obtaining a divorce, this content is no substitute for contacting an attorney. You may do so my clicking here. To read further about obtaining a divorce, please click here.
CALL NOW to schedule a consultation in our office!
212.267.0200 MARZEC LAW FIRM
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The Marzec Law Firm, PC is conveniently located in downtown Manhattan, Williamsburg-Brooklyn and Clifton-New Jersey. The Firm currently serves clients in New York, New Jersey, Connecticut, Massachusetts, California, Florida, and Illinois. Click here for directions to the New York City office.
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